Karnataka High Court
Chief General Manager Telecom ... vs B V Srinivas Rao on 18 August, 2010
Bench: V.G.Sabhahit, K.Govindarajulu
IN ma. HIGH COURT OF RAEANATAKA AT BANGALORE
DATED THIS THE 18"" DAY OF AUGUST 2010
PRESENT
THE HONBLE MRJUSTICE V.G.SABI~£AHI'1'
AND
THE HONBLE MR.JUS'1'ICE K.GOVINDARA;§_:OLOV.: 5
WRIT PE'I'I'I'ION NO7978 /-2;O'o0« rS--"f:Ajr:§ V
B BEN: _ 'O _
1. CHIEF GENERAL MANAGE--R _
TELECOM KARNATAKA CIR(ZL_E _
NO.1, OLD MADRAS ROAD, _ "
ULSOOR V ~ ..
BANGALORE-8
2. SE;\_IIO._R MANAGER
BANGALORE TELECOM4 DISTRICT
BANGALORE:-9 _ ' PETITIONERS
{By S331 ': ASHCK Am
I. 'SR_I_,SUBRAMA.bEY!a, ADV}
" W
1 SINCE DECEASED
AND NOWREP. BY {IS
8 V 'S>.R1NIv'AS.~»'I§A0
' ..'LF2GAL REP. BY
- T BI~'iA_V,£~xl\}IBAI
W30 LATE B.S.SRINIVASA RAO
v A_CéE:43 YRS
" "No.59, 59TH B CROSS,
'. ' Am N BLOCK, RAJAJINAGAR.
BANGALORE-v 1 0 ... RESPONDENT
(By SR} P A KSLKARNI, ADV}
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THIS WRIT PE3TI'l'lON IS FILED UNDER ARTICLES 226
a 22? OF THE coNsTrrU'r1oN OF 1NmA PRAYENG TO
QUASH VIDE ANX. A DT. 31.8.99 BY ma CENTRAL
ADMINIS'I'RA'Z"IVE TRIBUNAL, BANGALORE AND
CONSEQUENTLY REJECT THE APPL1cA'1"1oN E1Lei::>]'j<«B*r._
THE RESPONDENT. ..~ .
r
THIS PETITION COMiNG ON FOR
DAY, SABHAHIT J... MADE THE FoL1._.o.w1NG:_-'
ORDER 1 ' '
This writ petition is filed the respond.entsAin_:'origir1al
application N0.136/1999__being aggrieved byhtheiordveir dated
31.8.1999 passed by the 'Cgeni;_ral§_'Adizi§'nistrative Tribunal,
'CAT' for short. Bangalore' iadldirection has
been "--pet.itioners""'iierein by allowing the
application "tiledQljjgjA.r.he_:res'pondent herein to review the
seniority the'appl.icarit and to assign correct seniority
g_positi'on the appIi_c_arit in the composite unit of BGTD
takinginto~ac,coi1nt his origina}. relative position of seniority
annohg'the in the erstwhile DET, Bangaiore, which is
'V one of merging units and ignoring the effect of the
" 'glossed relative seniority initially under Rule 38, transfer and
. on review and allocation of the revised position of seniority in
9 ~ respect of the applicant in the above manner to consider for
9. grant of consequential benefits including promotion to the
next higher grade, if he is found otherwise eligible.
Leg,
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.
2. We have heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondent.
3. The learned. Counsel appearing for .
submitted that the order passed by the CAT"is~--.:§jrron.eous,,it and the same is liable to be set aside :as..i't is based"€i"p_o1el::Vs' misrepresentation of Rule 38 of the P8rTV_Manual'Voli;n1e_i§IVl Rule 38 deals with transfer. Ruvlea{:38{3) available only at the time of and netVl'.hefo:re.pQr subsequently. As the seniority of the respondent_ has'"alreadyV"been fixed on transfer at requjesttgu-ndgf--_fzule rnerely because there is merger of his ut1i.'i;_w_i€l1 ahoather. unit to form a larger unit his seniority in, his Origiriai cannot be restored. It is also submitted bylthle learned Counsel that after passing of o'riHl31.8.l999, the respondent died on 1.6.9-.i'9aQ=«._§:5¢r¢:§i..filing the writ petition' and his legal representativesl have been brought on record and since ' 'cause o'17.ai:tion was personal to the original applicant before the order passed by the CAT would not survive.
4. The learned Counsel appearing for the respondent submitted that in View of the provisions of Rule 38(3) the order passed by the CAT is justified.
Kfijd/9 -4-
5. We have given careful consideration to the contentions of the learned counsel appearing for the parties and scrutinised the material on record. It may be noted at the outset having regard to the fact that the claim ._ the original applicant before the CAT was a personal .' ' action and he died on 16.9.1999 after__passingj CAT on 31.8.1999 and this writ petition 1.3.2000 and legal representativ_es~.,of original. been brought on record. It is We1_1___s'€t_t1eed that when cause of action is personal, the cau.s'e_ of ac.;tivori'-- not survive in favour of the le al re resentat.ives.'--. 9 K
6. liiloiveverl hazringvregard to the directions which had been issueciloy if seniority is considered in _ accorrianc'e order passed by it and if it is found that A";_thefloriginal-Japplicant is entitled to any consequential benefits promotion to the next higher cadre, if V . he isfound otherwise eligibie, to find out as to whether the representatives of the original applicant would be ehtitied to any consequential benefits apart from the benefit that was granted which was personal to the original " applicant we have considered the writ petition on merits also. it is ciear on scrutiny of the material on record that the Kfigfi -5- applicant had. joined service on 16.4.1964 and confirmed on 1.3.1965 and was working in DET, Bangalore. He made an application voluntarily for transferring him' to the office of the General Manager, Bangalore Telephones, which independent unit and in view of Rule 38(2) his _ the transferred unit was fixed next below the_.1ast:':p.ers.on. in u the cadre of Bangalore 'l'elephones:.¢_ I:t.,.,isi» from . scrutiny of the material on recordthat"thereafter,5 Telephones and BET were merged' Secondsargvr Switching Area {SSA}, which is an Aiiri-::iep«.33nd_er1t:.aefvzearlier came into existence. However,whasing_'Von proiiision of Rule 38(3) pass the impugned order.
7. ltpis ,¢1e'ar'11-fun: the-;§:§§'1gj:1s.a1 of said Rule 38(3) that it is a part of VxRulevv3gE3',-_which.,'deals with the transfer from one a ,_unit ,_'tt5«:.anod1er. "Rnle__38 reads as follows» Transfer at one's own request.
I ffransfers of officials when desired for V'-.the--i'r convenience should not be discouraged if can be made without injury to the rights of Ag "others. However, as a general rule, an officials 'should not be transferred from one unit to another, either within the same Circle, or to another Circle unless he is permanent. As it is .. 6 -
not possible to accommodate an official borne on one gradation list into another gradation list without injury to the other members in that-'"--. gradation list s11ch transfers should not ordinarily be allowed except by way of exchange. Transfers by way of mutual in if in themselves inherently" '"unobjelctior1ab1e,l should be allowed, but in order to;'_'sai'egiiard::the rights of men borne in the gradation' lists the offices, the official brought in shoi1ld'Vta3;s;ell"thelll place, in he new gradation------E_i.st:. that wo1'1ldAAha}ve been assigned to originally recruited in that 11r1itg_or_gth.el by the official Wifhlgglufhoniil he appointment, whichever». is lower. V 'Note: V-f"l'ransli'erl"of officials, who are not pernlaneritlin the grade; rnay, in deserving cases, be permitted with personal approval of the Head of Circle/"Adr'nir1istrative Office. . official is transferred at his V' _ it ow1l:1..aret[1a.est but without arranging for mutual , ,...gxchanjge}.1'he will rank junior in the gradation list Eof new unit to all officials of that unit on the date" on which the transfer order issued, "including also all perssns who have been l 'approved for appointment to that grade as on that date.
{3} if the old and the new unit form parts of a wider unit for the purpose of promotion to a
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higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation Eist of the wider unit. Explanation (1) X x x Explanation (ii) x x x ' Explanation (iii) X x X Explanation (iv) x x x (4) xxx):
(5) x x x X"
8. It is clear from the the 'above said Rule that thevps-aid_AlF'{uvle liieals at one's own request. The respondeiitlheifein made an application requesting for transferring hiri1.tlor.lB'ati'galore Telephones and the same _ was peirnlitted u'r1derRul:e38{2} on 31.7.1981 and wherefore, hAis'«Seri:'o»lri:ty.in~..Bangaiore Telephones was fixed as per Rule 3'8_(2'l}.__neXt:llbeloilgfthe senior most officer in the cadre. The V dd _ merger offlangalore Teiephones and DET took place in the it VSrt~:are__le98t3 and Secondary Switching Area had been formed. ._'l1li1_ere--A"lis no dispute about the above 'said facts and wherefore, it is clear that sub~rule (3) of Rule 38 is not " V helpful to the applicant before the CET, as the same would apply where the old unit and the new unit forms part of a
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wider unit for the purpose of promotion to a higher cadre and whether by mutual exchange or otherwise, the transferee will retain his original seniority in the gradation list of the wider unit and wherefore, this provision cannotrbe applied as on the date on which the applicant mad'e"regu__est__VA' and accepting the application made voluntarily:I'equ.e:stirig for transfer seniority of the applicant:8had:A'already_been,y as per order dated 31.11981 and wherefore, merely: l)ecanse'i there is merger of two units sul5SetjuentlyV"in_ year i986 the applicant before CAT tofthe benefit of sub--rule (3) of Rule 38 which i',aéa1s transfer at one's own req_Liest."-- of 38 cannot be read in isolationV'with_ the. of Rule 38 ie, Rule 38 (1) and 38(2) they tollfbe read together and wherefore wouldulibevv-applicable only at the time of transfer W,wheti1er'v.on '_r.e'qu_est or mutual exchange and does not applicablelirijthle case where seniority has been fixed under [Rule 338(2)' thereafter, there is merger of units and "v.:~,x;here.fOre% the order passed by the CAT is erroneous and C.'.lca;j1not he sustained and the legal representatives of the " original applicant have come on record while filing the writ A petition, as the original appiicant died after passing the order 'at by CAT on 31.8.1999 and before filing the writ petition i.e.. on 16.9.1999.
Accordingly. the writ petition is disposed of. _ 9